Gay Men Creating Families Through Surrogacy

villageq.com by on November 17, 2014

On Sunday, November 2nd, Men Having Babies hosted its 10th annual workshop in New York City in an effort to bring together prospective parents, service providers, and experts on the subject of surrogacy. I spoke with a number of participants and attendees who agreed that surrogacy is becoming a more accessible and normative option for gay men looking to start families. Still, surrogacy in the United States presents the kind of obstacles Odysseus faced on his return to Ithaca after the fall of Troy. Men Having Babies tries to take the Sirens and Cyclops out of the equation by hosting these surrogacy workshops, which prove to be an oasis of information and resources. The gods were definitely with everyone that day, providing a safer passage on rocky seas.

“We started 15 years ago. It was literally just a handful of men at The Lesbian, Gay, Bisexual & Transgender Community Center who really wanted to gather as much information as we could,” explained Anthony Brown, Chairman of the board at Men Having Babies. “We invited service providers in and basically anybody who could answer the questions that we had. We did it in the form of monthly workshops which we still have the 2nd Wednesday of every month, 6:30-8PM here at the JCC (in New York City), and people can also go online at menhavingbabies.org to events, workshops for information on the whole schedule.”

While surrogacy provides an option for infertile straight couples, Men Having Babies structures panels and break-out sessions specifically for gay men. The speakers at the conference dealt with many of the issues gay men face on their surrogacy journey. Costs are very high. Surrogacy laws and LGBT discrimination laws vary from state to state and can be prohibitive. Surrogacy is unregulated, which means that participants are vulnerable to unethical practices. Fortunately, the prospective parents at Men Having Babies workshop benefit from the knowledge and experience of those who have gone down this path previously and were able to speak to the issues at hand.

THE PRICE TAG

Adding up the cost of egg donors, surrogates, agency fees, legal costs, and trips to visit surrogates, a couple could face a bill close to $150,000, not to mention the emotional costs that accompany the process. Finding the right surrogate and negotiating the kind of relationship a couple wants to have with her can be tricky not to mention the reality of failed transfers or failed pregnancies.

International surrogacy is much less expensive at about one-third of the cost of domestic surrogacy. However, while the financial stresses may be alleviated, some agencies may not act as ethically as others, exploiting poor women for their own economic gain. It is important for prospective parents to do their homework in sourcing agencies who work with surrogates who are financially stable.

I spoke with Ralph, a New Jersey father of three via two different surrogates in the United States. He said, “Neither of our surrogates needed the money. They were solidly middle class. They wanted to do it, and that was important to us. In general, the better agencies wouldn’t allow a woman to come into the program if it was a life and death situation for her.”

Men Having Babies, which is a nonprofit organization, recognized the economic barrier of surrogacy and started a financial relief service, Gay Parent Assistance Program (GPAP). Funding comes from surrogacy agencies that contribute to the GPAP program. Those agencies then receive discounts on the fees to participate in Men Having Babies events. Agencies benefit from partnering with Men Having Babies seminars in major markets such as New York, Chicago, San Francisco, Tel Aviv, and Brussels.

THE WILD WEST AND NO SHERIFF IN TOWN

A major obstacle for egg donors, surrogates, and gay men is that surrogacy is unregulated in the United States. There is no licensing body, and there are no requirements requiring agencies to know anything about the law or psychology or insurance or anything else that may support or protect parties from embarking on this journey. Because surrogacy laws are handled at the state level, there is no opportunity for the federal government to enforce laws to protect surrogates and hopeful parents. Recommendations and track records are important factors when shopping for providers.

Egg donors and surrogates face a significant amount of risk if they do not have sufficient support. There are no requirements to educate women about the physical tolls that result from donating eggs and carrying babies. Ralph echoed the opinion of many dads at the workshop when he said, “It shouldn’t be easy for young women to donate a zillion times and risk their health and fertility.”

Unfortunately, for some surrogacy agencies, money is more important than providing would-be parents with a family. Attendant and hopeful father Doron said, “I have dealt with a few agencies, some better than others. This is an industry. It’s a business. There are good people and bad people, and I landed with some bad people.”

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in IVF / Known Donor / Legal / Legislation / Parenting / Second Parent Adoption / Surrogacy  by Anthony Brown 0 comments

Court Upholds Four States’ Bans on Same-Sex Marriage

New York Times by Erik Ekholm, November 6, 2014

By a 2-to-1 vote, a federal appeals court in Cincinnati upheld the right of states to ban same-sex marriage, overturning lower-court decisions in Kentucky, Michigan, Ohio and Tennessee that had found such restrictions to be unconstitutional.

The long-awaited decision, written by Judge Jeffrey S. Sutton, an appointee of President George W. Bush, ​was the first by an appeals court to uphold a ban on same-sex marriage, contradicting rulings by four other federal circuit courts. The ruling appeared almost certain to force the Supreme Court to decide the same-sex marriage issue for the nation.

“This is the circuit split that will almost surely produce a decision from the Supreme Court, and sooner rather than later,” said Dale Carpenter, a professor of constitutional law at the University of Minnesota. “It’s entirely possible that we could have oral arguments in coming months and a Supreme Court decision by next summer.”

In the decision, by a panel of the United States Court of Appeals for the Sixth Circuit, Judge Sutton said that it appears almost inevitable that American law will allow gay couples to marry, but the more fundamental question, he wrote, is “Who decides?”

Judge Sutton said that such a profound change in the institution of marriage should be decided not by “an intermediate court” like his, but by “the less expedient, but usually reliable, work of the state democratic processes.” He dismissed the reasoning issued in the last year by several other federal courts, which have ruled that barring same-sex marriage violated equal protection or due process clauses of the Constitution and have no rational basis.

n the decision, by a panel of the United States Court of Appeals for the Sixth Circuit, Judge Sutton said that it appears almost inevitable that American law will allow gay couples to marry, but the more fundamental question, he wrote, is “Who decides?”

Judge Sutton said that such a profound change in the institution of marriage should be decided not by “an intermediate court” like his, but by “the less expedient, but usually reliable, work of the state democratic processes.” He dismissed the reasoning issued in the last year by several other federal courts, which have ruled that barring same-sex marriage violated equal protection or due process clauses of the Constitution and have no rational basis.

Michael C. Dorf, a constitutional expert at Cornell Law School, said that “the essence of this opinion is that the issue should be left to the democratic process or to the Supreme Court, but I’m not going to do this as an appeals court judge.”

In a stinging dissent, Judge Martha Craig Daughtrey, an appointee of President Bill Clinton, called the majority opinion “a largely irrelevant discourse on democracy and federalism” that treated the couples involved as “mere abstractions” rather than real people suffering harm because they were denied equal status.

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in In the News / Legal / Parenting  by Anthony Brown 0 comments

When Gay Men Want to Be Biological Dads

Gay City News – By Paul Schindler – October 30, 2014

New York finished a more than respectable sixth place in terms of states giving gay and lesbian couples the right to marry, but for gay men who wish to be the biological father to their child, the primary route to doing so — relying on a surrogate mother to carry their child to birth — remains closed to them here at home.

In fact, across the 50 states, New York and New Jersey are among the five most legally restrictive for gay men — or anyone else — taking advantage of the advances in reproductive technology that surrogacy offers.

For the past 15 years, though, Men Having Babies, a New York-based nonprofit group, has worked with gay men here and elsewhere to assist them as they navigate the journey to fatherhood through surrogacy, largely out of state. During that time, demand for surrogacy services has grown dramatically among gay men, but the number of providers of such services that work with the LGBT community has exploded. The result is that costs have come down significantly and access to information and resources has improved.

Men Having Babies is a big part of that changed landscape.

On November 2, the group holds its 10th annual conference and expo, bringing together experts on surrogacy and LGBT families as well as roughly three-dozen service providers, including surrogacy and fertility clinics and attorneys who specialize in family law.

According to Anthony Brown, Men Having Babies’ board chair, the November 2 conference, which will be held at JCC Manhattan, is the largest event in an ongoing schedule of monthly meetings and workshops the group offers in New York for prospective “intended parents” — a legal term of art for the two parents who, in the best case, will be listed on a child’s birth certificate under the terms of a surrogacy contract and the applicable state law.

Under existing New York law, surrogacy contracts are legally unenforceable and, except for specific minor expenses, a woman who carries her own biological child to term or serves as gestational carrier for another woman’s fertilized egg cannot be compensated for giving up parental rights to the child at birth. Brown, who is a family law attorney, said there are such instances of “altruistic” surrogacy, but it is a risky path for intended parents since their legal rights are not secured until after birth.

Out gay Manhattan Senator Brad Hoylman and Westchester County Assemblymember Amy Paulin, both Democrats, have proposed legislation to open up surrogacy rights to New Yorkers but the measure has not yet advanced in Albany. New Jersey does not have the outright ban New York is burdened by, but its case law poses similar barriers to intended parents.

Hoylman and his husband, David Sigal, have a daughter born through surrogacy, and Brown and his husband, Gary Spino, are fathers to Nicholas, born in 2009 with the help of a gestational surrogate. Brown and Spino, whose sperm was used, worked with an egg donor from Florida and a gestational surrogate who lived in North Carolina — a process that had to be structured to comply with the laws of several states. Brown explained that such gestational surrogacy has become more common than “traditional” surrogacy — in which a woman carries her own biological offspring to term — because most instances of a surrogate rethinking and regretting her decision to surrender parental rights involve those who are the biological mother. He emphasized, however, that he and Spino have worked to keep both women involved in Nicholas’ birth a part of the youngster’s life.

According to Brown, the world has changed considerably even since he and Spino became fathers in 2009 — a story that was captured in a Soledad O’Brien special on CNN and in Gay City News’ LGBT Pride issue cover story. He estimated that the total costs incurred — for surrogacy services, hospital expenses, legal fees, and compensation to the surrogate and the donor, not to mention travel — came to $160,000, though without one extraordinary expense typically not incurred the cost would have been $140,000. With the proliferation of providers serving the market of gay intended parents, he said, that has come down to an average of about $110,000, and Brown has seen some full-service providers offering costs as low as $85,000.

That’s still a big hurdle for many prospective parents, and Men Having Babies works to ease the burden on at least some of them. Brown said the group last year distributed about $600,000 in cash and donated services to nine qualified couples or single parents and made provider discounts worth about $1 million available to another 30.

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in In the News / Legal / Legislation / Surrogacy  by Anthony Brown 0 comments

New York State Is Lousy for Gay Men Who Want Children

New York Observer – by John Bonazzo – October 30, 2014

It’s the worst nightmare for any father–missing the birth of your child.

But that’s exactly what happened to Anthony Brown and Gary Spino. The couple lives in the West Village, but, since New York state law prohibits surrogate reproduction, they had to conceive their son Nicholas with the help of a surrogate in North Carolina.

“We had a C-section scheduled, but the surrogate’s water broke early,” Mr. Brown told the Observer. “We had to drive nine hours for our son’s birth, and it turns out we were four hours late.”

Overturning New York’s restrictive surrogacy law is one of the main goals of Men Having Babies (MHB), the organization of which Mr. Brown, a family law attorney, is chairman of the board. Though the state was lauded for being one of the first to pass marriage equality, when it comes to family matters the picture is not quite so rosy.

“New York’s family law is more conservative,” Mr. Brown said. “The capacity of the medical field’s advances has outshot lawmakers’ ability to regulate.”

Several members of the board of directors of MHB are in Albany lobbying for passage of the Child Parent Security Act, which would legalize surrogacy in the state.

Aside from advocating legal protections for surrogates, one of the organization’s main functions is to be “a peer support network for biological gay fathers and fathers-to-be,” MHB’s website states.

Mr. Brown knows well how valuable this peer support is–he, like every other board member, started his involvement with the group by attending one of their monthly workshops, which deal with particular aspects of surrogacy.

“We’re all alumni,” Mr. Brown said. “When we came in, the other members answered questions and allayed fears.”

Mr. Brown and the rest of the board will be on hand this Sunday, when 100-150 families are expected to attend the 10th annual Men Having Babies conference at the Manhattan JCC. The event, the largest of its kind on the East Coast, will feature seminars on surrogacy as well as private consultations with providers.

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in Legal / Legislation / Second Parent Adoption / Surrogacy  by Anthony Brown 0 comments

What the Latest Marriage Equality Ruling Says About Same-Sex Parents

Mombian.com, October 7, 2014

What a week! Same-sex couples can now marry in Idaho and Nevada, adding to the boatload of states that have gained marriage equality in the past few days. Let’s look at what the latest court decision said about children.

A three-judge panel of the 9th Federal Circuit Court of Appeals ruled yesterday that it is unconstitutional to prevent same-sex couples from marrying in Idaho and Nevada. Their decision should soon extend to all of the other states within the circuit that don’t yet have marriage equality — Alaska, Arizona, and Montana.

Judge Stephen Reinhardt, who wrote the opinion, was not as amusingly acerbic as Judge Richard Posner in the 7th Circuit, but did come up with this zinger, responding to a statement by Idaho Governor Butch Otter:

[Governor Otter] also states … that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.

Reinhardt, like all federal judges who have ruled for marriage equality since June 2013, leaned heavily on the U.S. Supreme Court’s Windsor decision in addressing the states’ argument that marriage should be restricted to different-sex couples because only they can create children, and children do better when raised with a mother and a father:

In extending the benefits of marriage only to people who have the capacity to procreate, while denying those same benefits to people who already have children, Idaho and Nevada materially harm and demean same-sex couples and their children. Denying children resources and stigmatizing their families on this basis is “illogical and unjust.” It is counterproductive, and it is unconstitutional….

To allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as unconstitutional. Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in “family values.” In any event, Idaho and Nevada’s asserted preference for opposite-sex parents does not, under heightened scrutiny, come close to justifying unequal treatment on the basis of sexual orientation.

OK, he was a little acerbic:

Defendants’ essential contention is that bans on same-sex marriage promote the welfare of children, by encouraging good parenting in stable opposite-sex families…. Defendants have presented no evidence of any such effect. Indeed, they cannot even explain the manner in which, as they predict, children of opposite-sex couples will be harmed. Their other contentions are equally without merit.

He is clear that married same-sex couples are not the cause of more children being raised outside of marriage:

True, an increasing number of children are now born and raised outside of marriage, a development that may well be undesirable. But that trend began apace well before the advent of same-sex marriage and has been driven by entirely different social and legal developments….

The defendants’ assertion that excluding same-sex couples from marriage will do anything to reverse these trends is utterly unsubstantiated.

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Mother Asks Judge Not To Recognize Late Son’s Marriage To Another Man

by Carlos Santoscoy, October 3, 2014

An Alabama mother has asked a federal judge not to recognize her late son’s marriage to another man.

Paul Hard and Charles David Fancher married in 2011 in Massachusetts.

Roughly 3 months after the wedding, Fancher was killed in a car crash north of Montgomery, which led to a wrongful death case.

Alabama officials have refused to recognize the marriage. Fancher’s death certificate lists him as unmarried.

Hard sued the state, asking a federal judge to force Alabama officials to issue a corrected death certificate for Fancher that lists him as the surviving spouse.

Pat Fancher, Charles Fancher’s mother, intervened in the case and asked the court not to recognize her son’s out-of-state marriage. She is represented by the Christian conservative group Foundation for Moral Law.

“This claim is contrary to Alabama state law,” Ms. Fancher’s attorneys wrote. “It is Defendant Fancher’s opinion that Plaintiff’s requested injunction, if granted, will violate the millennia-old institution of marriage as ordained by God.”

At a news conference in February to announce the lawsuit, Hard said that hospital workers refused to acknowledge his marriage and that he learned of his husband’s passing from a hospital orderly after about a half-hour of inquiries.

The Southern Poverty Law Center (SPLC), which is representing Hard, said at the time that Hard is entitled to proceeds from the wrongful death case.

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in Estate Planning / In the News / Legal  by Anthony Brown 0 comments

Lawsuit: Wrong sperm delivered to lesbian couple

By Meredith Rodriquez, Chicago Tribune – October 1, 2014

A white Ohio woman is suing a Downers Grove-based sperm bank, alleging that the company mistakenly gave her vials from an African-American donor, a fact that she said has made it difficult for her and her same-sex partner to raise their now 2-year-old daughter in an all-white community.

Jennifer Cramblett, of Uniontown, Ohio, alleges in the lawsuit filed Monday in Cook County Circuit Court that Midwest Sperm Bank sent her the vials of an African-American donor’s sperm in September 2011 instead of those of a white donor that she and her white partner had ordered.

After searching through pages of comprehensive histories for their top three donors, the lawsuit claims, Cramblett and her domestic partner, Amanda Zinkon, chose donor No. 380, who was also white. Their doctor in Ohio received vials from donor No. 330, who is African-American, the lawsuit said.

Cramblett, 36, learned of the mistake in April 2012, when she was pregnant and ordering more vials so that the couple could have another child with sperm from the same donor, according to the lawsuit. The sperm bank delivered vials from the correct donor in August 2011, but Cramblett later requested more vials, according to the suit.

Cramblett is suing Midwest Sperm Bank for wrongful birth and breach of warranty, citing the emotional and economic losses she has suffered.

An attorney for Midwest Sperm Bank said the company would not comment on pending litigation.

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in In the News / Known Donor / Legal  by Anthony Brown 0 comments

Parenthood Denied by the Law – New York’s Outdated Parentage Law

After a Same-Sex Couple’s Breakup, a Custody Battle

New York Times, September 12, 2014 by John Leland

The Marriage Equality Act, which New York State passed in June 2011, allowed Jann Paczkowski to marry her partner, Jamie, with the assurance that “the marriages of same-sex and different-sex couples” would “be treated equally in all respects under the law.” But when the couple separated and Ms. Paczkowski sought joint custody of the 2-year-old boy they were raising together, she discovered the limits of that assurance. On June 30, 2014, a judge in Nassau County family court ruled that Ms. Paczkowski did not have legal standing to seek access to the boy — because even under the Marriage Equality Act, she was not his parent.

In his decision, Judge Edmund M. Dane acknowledged “inequity” and “imbalance” in the law, adding that if Ms. Paczkowski were a man in the same position, the law might point toward a different ruling. But in the end, he left Jann with no contact with the boy.

The decision devastated Ms. Paczkowski, 36. “You can see how angry and upset I am,” she said on a recent afternoon, seated beside her court-appointed lawyer after a morning spent moving cars for an auction house. She had not seen the boy since a brief visit on Mother’s Day.

“For 17 1/2 months I changed his diaper in the quickness of a dime,” she said. “I fed him. I sat him in a high chair, one spoonful for you, one for me. At night he crawled up to me in bed. Each step that my son took, I did it with him. That’s what a parent does.”

Beyond her pain, the ruling also illuminated a snarl in New York’s treatment of same-sex couples, three years after the passage of the Marriage Equality Act, according to some legal scholars.

“This is a troubling ruling because it leaves a same-sex parent as a legal stranger to her child,” said Suzanne B. Goldberg, director of the Center for Gender and Sexuality Law at Columbia University law school. Family law, she said, “has not caught up with the way families live their lives, or the rest of New York law. And that gap is causing tremendous damage.”

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in In the News / Legal / Parenting  by Anthony Brown 0 comments

Thai surrogacy is now dead in the water

Australian Surrogacy and Adoption Blog – July 31, 2014 By Stephen Page –

A couple of days ago I wrote about how there was a crackdown in Thailand about surrogacy and gender selection.

Yesterday there was a meeting between the various IVF clinics, the Thai Medical Council, lawyers and others. The outcome of the meeting is ominous for those who undertake surrogacy in Thailand: it is over.

In summary, surrogacy is now only recognised in Thailand if:

  • the intended parents are a heterosexual married couple
  • who are medically infertile
  • the surrogacy is altruistic
  • and the surrogate is a blood relative.

It is no surprise that this will exclude almost every foreigner from pursuing surrogacy in Thailand. For Australians, this is significant- as about 400 babies were born in Thailand via surrogacy in the year ended 30 June 2012 to Aussie intended parents, and that number is likely to have increased since then.

The ruling coming out of the meeting, bearing in mind that there is now a military junta in charge in Thailand, is that surrogacy will be illegal in Thailand if:

  • the intended parent or parents are unmarried under Thai law (i.e. de facto couples, same sex couples and singles are excluded)
  • any money is paid to the surrogate
  • the removal of the child from Thailand without permission of Thai authorities will breach Thailand’s human trafficking laws.

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in In the News / International / Legal / Surrogacy  by Anthony Brown 0 comments

Archaic Rules Applied in Gay Man’s Estate Dispute

Gay City News – July 24, 2014 by Art Leonard

BY ARTHUR S. LEONARD |  An early 2014 ruling from a surrogate judge in Manhattan highlights the dangers of making a will without the assistance of somebody knowledgeable about estate law. And, it also illustrates one court’s surprising reliance on old cases rather than on the evolving precedents in same-sex partner law in the decades leading up to New York State’s 2011 marriage equality law.

In a February 14 decision, New York County Surrogate Nora Anderson resolved a disputed distribution from the estate of Ronald D. Myers, who died in 2006, by apparently making a “presumption in favor of” a relative, his mother, “as against unrelated persons,” in this case his surviving partner, Dr. Martin Ephraim. Both Myers’ mother and Ephraim have since died as well, making this a battle between their heirs.

The attorney for Ephraim’s estate, Karen Winner, has now filed a motion for re-argument, contending that the court’s decision overlooks significant precedents dating back to the 1980s establishing the “family” status of cohabiting same-sex partners.

The problems in this case stem from a homemade will Myers created in 1981, by which point he and Ephraim had already been together for 11 years. In the will, Myers designated Ephraim and his mother as executors, but when Myers died in 2006, his mother renounced her appointment, so Ephraim served as the sole executor.

In the will, Myers provided that “all monies will be left to my Mother, Roberta F. Long. And that all Stocks of IBM will be left to Dr. Robert Ephraim. And also all personel [sic] property will be left to Dr. Robert Ephraim.”

In carrying out his duties as executor, Ephraim paid over to Long, who survived her son, the roughly $40,000 in cash in the estate. At his death, Myers owned a substantial portfolio of stocks, including but not limited to IBM, which Ephraim transferred to himself, treating the non-IBM stock as “personal property.”

When Long subsequently died without a will, her administrator filed an objection to how Ephraim had distributed the stock, arguing he was entitled under the will to inherit only the IBM stock and Myers’ “personal effects.” When Ephraim himself died, his brother stepped into the case, which now pits Ephraim’s heirs against Long’s for the value of the non-IBM stock, which made up the bulk of the estate. (Winner’s motion for re-argument mentions, as the court’s opinion did not, that Myers had separately purchased annuities for his mother valued at $165,000, which passed to her outside the estate.)

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in Estate Planning / In the News / Legal  by Anthony Brown 0 comments